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Systemic barriers to access to justice | Serena Eshaghurshan

Wednesday, January 27, 2021 @ 8:27 AM | By Serena Eshaghurshan


Serena Eshaghurshan %>
Serena Eshaghurshan
“Access to justice” is a term used to denote the notion of a legal system that is responsive to the needs of all individuals. In other words, it means ensuring that all segments of society can access the legal system and related supports. It means that all people are treated equally under the law. However, it is an unfortunate reality that not everyone has the same degree of ease in accessing various components of the legal system. Certain socioeconomic disadvantages result in marginalized populations suffering from disproportionate rates of adversity and incarceration.

As client advocacy is the heart of being a lawyer, it is imperative for lawyers to both highlight and rectify systemic barriers to the justice system. In this article, I will discuss some of the systemic barriers faced by vulnerable populations, and why reform is necessary.

Marginalized and vulnerable segments of our society face greater adversity because of poverty, homelessness, mental illness, intergenerational trauma and other adverse factors. These factors also lead to systemic barriers in terms of accessing components of the legal system.

One of the most adversely impacted groups are Indigenous peoples. Canada’s dark history of colonization and the implementation of the residential school system has resulted in Indigenous peoples being disproportionally affected by intergenerational trauma, poverty and incarceration. As such, despite composing only 4.1 per cent of the population, Indigenous peoples represent 28 per cent of the federal inmate population (according to Overrepresentation of Indigenous People in the Canadian Criminal Justice System: Causes and Responses). This disproportionality is further highlighted in female and youth inmates. Indigenous women represent 40 per cent of the female inmate population. Indigenous female youth represent 60 per cent of the female youth inmate population.

Furthermore, Indigenous peoples face systemic barriers within the justice system itself, from policing to sentencing. Indigenous peoples are more likely to be sentenced to custody than their non-indigenous counterparts. Reasons for this vast overrepresentation can be traced back to the effects of colonialism, the residential school system, socioeconomic marginalization, systemic discrimination and systemic attempts to eradicate Aboriginal culture. While the Supreme Court has attempted to address the effects of intergenerational trauma and disproportionate incarceration rates via the implementation of Gladue reports, there is still much more to do, such as an increased awareness and implementation of restorative justice measures.

Another marginalized group that faces disproportionate incarceration rates is the homeless population. Research has demonstrated that individuals who suffer from homelessness are at a greater risk of incarceration. Likewise, incarceration yields a greater risk of homelessness. It is estimated that approximately 20 per cent of inmates were homeless immediately prior to their incarceration. Likewise, it is estimated that 30 per cent of individuals incarcerated will have no home to go to pending their release.

This problem is further compounded when accounting for mental illness. Individuals suffering from homelessness are disproportionately affected by severe mental illness. In fact, the estimated prevalence rate of psychiatric illness among the street homeless population is 92 per cent. In a meta-analysis conducted on the prevalence of psychiatric illness in the homeless population, it was determined that 21.21 per cent of the homeless population suffers from psychosis (versus one per cent of the non-homeless population); 10.29 per cent suffer from schizophrenia, 2.48 per cent suffer from schizophreniform disorder, 3.53 per cent suffer from schizoaffective disorder and nine per cent suffer from psychotic disorders not otherwise specified.

Dire social circumstances combined with severe mental illness serves as a catalyst to involvement in the justice system. As such, there is an overrepresentation of individuals suffering from mental illness in the prison population. In fact, a study conducted on men in provincial custody in Edmonton highlighted this disproportionate representation. Of this population, the lifetime prevalence rate for any disorder was 91.7 per cent (versus 43.7 per cent for the general population), 87.2 per cent for substance use disorders (versus 39.6 per cent), 22.8 per cent for affective disorders (versus 12.0 per cent) and 2.2 per cent for schizophrenia (versus 0.5 per cent).

As incarceration is an inadequate means to address mental health issues, there needs to be an alternative method to address underlying mental health and social concerns. This measure was successfully adopted via the implementation of mental health courts, which serve as a safeguard to address mental health concerns without incarceration. For example, Edmonton’s mental health court has heard more than 8,000 cases within a two-year period. Not only do mental health courts aid in connecting an individual with much needed care, they also reduce overall stress and burden on the legal system itself.

In conclusion, it is a harsh reality that not everyone in society is afforded the same opportunities. As discussed, the most vulnerable and marginalized segments of our society face systemic barriers both within and outside the legal system, which results in disproportionate representation in the justice system. While there has been reform and attempts to address these issues via the implementation of Gladue, alternative sentencing, restorative justice, mental health courts etc., more can and must be done.

As Gandhi once said, “the true measure of any society can be found in how it treats its most vulnerable members.” Lawmakers and members of the judiciary must continue to push for greater reform and strive for more equitable access to justice outcomes. Not only will this benefit our most vulnerable, but it also will strengthen the very fabric of our legal system.

Serena Eshaghurshan is 2021 JD candidate at the University of Calgary. Prior to law school, she received a bachelor of arts in psychology at the University of Calgary.

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